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The rules concerning the late submission of proposals after the date set for receipt of bids and proposals has been amended over time to accommodate modern delivery methods. But the overarching rule remains, nevertheless, “late is late.”
The strict rule for timely submission of proposals, and modifications or revisions to proposals, is very clear: “Offerors are responsible for submitting offers, and any revisions and modifications to them, so as to reach the Government office designated in the solicitation on time.”(1) The Government may, at its discretion, waive the rule if a proposal received late is the only proposal received, or if a proposal received late offers better terms and prices (i.e., a better deal) than an otherwise successful proposal.
Nevertheless, the late rule is generally always rigidly enforced—the proposal must be received exactly on or before the time and date and at the exact location (i.e., the bid room) set for receipt of proposals in the Request For Proposals (RFP). And the entire proposal must be received, not merely a portion of it. Moreover, no acts of God or similar factors will excuse lateness unless they involve Government mishandling.
If the Government is at fault—mishandles or improperly processes a proposal otherwise submitted timely—a proposal will be deemed timely received. Government mishandling may also occur as a result of actions taken prior to receipt of a bid or proposal. For example, the Government may provide an address in the RFP that is not the correct bid opening room, or the entrance to the building is blocked, making delivery extraordinarily difficult causing late submission.
Today many agencies post their solicitations on a web portal and require electronic submission of the bids and proposals. The Government is required to notify offerors that they are responsible for submitting offers “so as to reach the Government office designated in the solicitation on time.”(2) The rule for timeliness is not diminished by transmission of proposals through the World Wide Web.
In Conscoop-Consorzia Fra Cooperative Di Prod. E. Lavaro v. United States (“Conscoop”), No. 04-5150, June 10, 2005, the United States Court of Appeals for the Federal Circuit (the Court) strictly enforced the rule. The U. S. Navy released an RFP to acquire the services of a contractor to make “improvements to the main gate and renovations of a building at the U. S. Naval Base at Sigonella, Italy.” Seven (7) proposals were received, but the proposal from Conscoop was late. The Navy rejected the proposal from Conscoop. Thereafter, Conscoop filed a protest at the United States Court of Federal Claims. The Claims Court held that the proposal was properly rejected. Conscoop appealed the decision to the Court of Appeals. The appellate court affirmed the judgment of the lower court.
The Court noted that electronic transmission of proposals to perform the work were due at the specified e-mail address, according to the RFP, with technical proposals due 18 Jul 2003, 1400 (hours) and price proposals due 5 Aug 2003, 1400 (hours). The hours were stated in local time. The Navy web site, however, stated the due date of the solicitation (proposals) was “Due Date: 05 Aug – 2003 1400 hrs (U.S. Time Zones)”.
The Court held that the information on the Navy web site was for information, but it was not part of the solicitation. The “Synopsis or Description“ title on the web site stated that “the submittal requirements are described in the solicitation.” The Court stated that “The only reasonable interpretation of this referral language is that the solicitation is a separate document and the information on the web site was not part of the solicitation.” The Court went on to state that “Incorporating the ‘U.S. Time Zone’ language from the web site into the solicitation would be to impermissibly rely on extrinsic evidence to interpret an otherwise plain and unambiguous term within the solicitation.”
“Local Time” generally refers to the time where the Government office designated in the solicitation is located. The solicitation stated that offers could be sent to the U. S. Navy Supply Department in Napoli (Naples) Italy. The Court stated that the “requirement to submit price proposals by 1400 hours local time can only be interpreted as 1400 hours Naples time.”
Many people apparently think that an e-mail is received instantly after it is sent. Conscoop sent their proposal at 1358 hours Naples time; it arrived at the Navy server at 1540 hours. The Navy rejected the proposal as untimely (i.e. it was late). Conscoop protested that its proposal was received timely, but the Court disagreed. The Court found no emergency existed that interrupted the agency’s ability to receive offers at the required time and location.
The timeliness rules for delivery of proposals are rigidly enforced. The “late is late” rule is rarely overturned in a protest, because it is extremely difficult for offerors to prove the lateness was caused by Government mishandling.
Furthermore, the general rule is that the entire proposal must be received by the Government at the time, date, and location specified in the RFP, not just part of it. If you are delivering a proposal to a location in a different time zone, be sure to adjust your schedule to permit timely delivery.
Also, refer to instructions in the RFP, not FedBizOps or an acquisition website. The RFP is controlling! If the proposal must be delivered electronically, offerors are strongly urged to submit their offers on or before the time and date specified in the RFP to avoid being late and holding the Government accountable for mishandling.
Given all the precious dollars invested in a Bid & Proposal effort, don’t waste them by delivering a proposal late.
Tom Petruska, Owner
Contracts Unlimited Incorporated
Do you need help with a proposal response?
1. See FAR 15.208
2. See FAR 15.215-1(e)
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